Bhubaneswar: Simply being a senior citizen does not automatically entitle a person to receive maintenance from children unless shown that they are unable to maintain themselves from own earnings or out of own property, the Orissa high court has held in a judgement.
In a case in which a 69-year-old man in Odisha’s Rayagada district alleged that his son is not maintaining him, the single bench of judge Sashikanta Mishra held that simply being a senior citizen does not automatically entitle a person to receive maintenance from his children. “The inability to maintain himself from his own earnings or out of property owned by him is a precondition for claiming maintenance under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007,” the court said.
The man had filed an application under Section 5 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 last year before the court of sub-collector, sub-divisional magistrate (SDM), Rayagada-cum-maintenance tribunal, claiming monthly maintenance of ₹5,000 against his son. The man alleged that his son had ousted him from the house and that despite being aged about 69 years, his son is not maintaining him.
The Maintenance Tribunal directed the son to handover the key of the building’s gate to his father and pay ₹5,000 towards monthly maintenance. Aggrieved over the order, the son filed an appeal before the collector-cum-appellate authority, which rejected the petition and asked him to pay the monthly maintenance, following which he appealed against the order before Orissa high court.
{{/usCountry}}The Maintenance Tribunal directed the son to handover the key of the building’s gate to his father and pay ₹5,000 towards monthly maintenance. Aggrieved over the order, the son filed an appeal before the collector-cum-appellate authority, which rejected the petition and asked him to pay the monthly maintenance, following which he appealed against the order before Orissa high court.
{{/usCountry}}During the hearing, the counsel for the son submitted that neither the tribunal nor the appellate authority considered whether the father is unable to maintain himself from his own earnings or out of the property owned by him. Without assessment of this foundational fact, the application for maintenance should not have been considered, his counsel argued.
Further, it was argued that Section 9 of the Act provides for grant of monthly maintenance only if the children or relatives, as the case may be, neglect or refuse to maintain a senior citizen. However, neither of the forums rendered any finding in this regard. He also alleged that the tribunal as well as the appellate authority failed to consider Rule 14 of the Odisha Maintenance of Parents and Senior Citizens Rules, 2009, which provides for the mode of calculation of the maximum maintenance allowance, while fixing the maintenance amount.
Rule 14 of the Act says that “the maximum maintenance allowance which a Tribunal may order the opposite party to pay shall, subject to a maximum of ₹10000 per month/be fixed in such a manner that it does not exceed the monthly income from all sources of the opposite party, divided by the number of persons in his family, counting the applicant or applicants also among the opposite party’s family members”.
During the hearing, the judge held that simply being a senior citizen does not automatically entitle a person to receive maintenance from his children. It said the inability of a senior citizen to maintain himself from his own earnings or out of property owned by him is a precondition for claiming maintenance under the provision.
The court was of the view that the Tribunal as well as the Appellate Authority failed to provide any finding on the aforesaid aspect. It held that the tribunal as well as the appellate authority did not pay heed to the methodology prescribed under the Rule for determining the maximum maintenance allowance that can be directed to be paid. The matter has been remitted back to the tribunal for a fresh hearing to comply with the provisions.